Child Custody Law

Child custody law is the legal process of determining which parent is legally responsible for making decisions on behalf of the children involved in divorce or separation proceedings. Child custody matters are determined either by a family court judge or by a custody agreement between both parents that is recognized by the court. The court bases child custody decisions on each parent's ability to act in the best interests of the child.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Aug 9, 2021

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  • Physical and legal custody are the two types of custody that must be determined in a divorce or separation of parents with minor children
  • When making custody decisions, the court considers the best interest of the child, looking at factors such as each parent’s ability to protect and provide for the child, as well as the relationship the child has with each parent
  • A parenting plan can be modified through the courts years after it was put in place if there are changes to either parents’ circumstances that make the arrangement no longer in the best interests of the child
  • A child custody lawyer can provide guidance and assistance in developing a parenting plan or modifying an existing one

Child custody law is a branch of family law which ensures that parents who can provide a safe and healthy atmosphere to benefit their child’s physical and emotional well-being after separation are afforded the right to do so.

While it is generally the preference of the courts to grant each parent joint access to the rights and responsibilities that come with raising a child, there are situations in which it is in the child’s best interest for physical or legal custody to be given solely to one parent. A child custody attorney can help navigate this legal realm.

Keep reading to learn more about child custody law and how to hire a child custody lawyer to review a custody agreement that you and your ex have drafted together or if you fear for a child’s safety while they are in the custody of the other parent.

Child custody law attorneys are specifically trained in this area of law to protect the best interests of your children and your family. Enter your ZIP code above to find a child custody law firm in your area.

What is child custody law?

Child custody is a term that refers to both the legal and hands-on relationship between a child and his or her parents. Child custody laws regulate how custody of minor children is assigned after divorce, separation, a death in the family, or emancipation cases.

Child custody laws by state can determine:

  • Which parent the child primarily resides with and how much parenting time the non-custodial parent has with the child
  • Which parent has the right to make medical decisions on the child’s behalf, as well as decisions about where the child will attend school or church, and the types of activities the child will be permitted to participate in

When awarding custody through the court or when the parents enter into a parenting agreement, it must be decided whether custody will be awarded jointly, meaning it is shared between the parents, or if it will be awarded solely to one parent.

In previous eras, custody of the children was generally awarded to the mother, as it was assumed that the father would be working and paying support, while the mother performed the tasks of raising the children. This notion is still commonly believed, but is entirely inaccurate. In fact, some states explicitly forbid any consideration of the gender of the parents.

Current child custody cases involve all types of arrangements, generally encouraging each parent to have as much input into the child’s care as possible and in accordance with the best interests of the child.

There are two types of child custody that must be determined through a custody agreement between the parents or by a family court judge if the parents are unable to reach an agreement: physical custody and legal custody.

Physical Custody

Physical custody refers to who is responsible for the child’s day-to-day care and with which parent the child will primarily reside. Even if the parents agree to or the court orders joint physical custody, the child will still have a primary residence. The parent who resides there with the child will be considered the custodial parent, while the parent that is granted parenting time (visitation) is referred to as the non-custodial parent.

Joint physical custody does not necessarily mean that the child is with each parent 50% of the time, though some parents choose to do exactly that when parents live close to one another and can accommodate the custodial exchange. Often, however, joint physical custody means each parent obtains a substantial and regular amount of parenting time with the child.

While courts usually prefer a joint custody arrangement that supports a healthy relationship between the child and both parents, there are cases in which it is in the child’s best interest to award sole physical custody to one parent. Sole physical custody is often awarded if the non-custodial parent is unable to provide a safe environment to the child as a result of alcohol or drug addiction, because he or she is actively engaged in an unsafe lifestyle, or has been verbally or physically abusive toward the child or others.

If custody of a child has been awarded solely to one parent due to the unsafe lifestyle or behaviors of the non-custodial parent, the courts may order that parenting time with the non-custodial parent be supervised. Supervised visitation generally takes place at an agency, where an uninvolved third party can monitor the exchange between the parent and child. In some cases, the supervised visitation can take place at another family member’s home, such as the home of the child’s grandparents.

Legal Custody

Legal custody has nothing to do with which parent the child lives with. Rather, this type of custody refers to the rights of the parent to make legal decisions on behalf of the child, such as where they attend school or church. The legal custodian is also obligated to seek and consent to medical treatment for the child and can be found legally liable for criminal actions committed by the child until he or she reaches the age of majority.

Because legal custody does not have anything to do with where the child lives, the lifestyle of the parents is not as heavily regarded in consideration of awarding legal custody. However, the parents’ ability to share in the legal responsibilities of raising their child depends on how well they are able to work together. Divorces are often contentious and parents who have divorced do not always communicate properly or respectfully with each other to the level required to share joint-decision making.

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When do I need to hire a child custody lawyer?

Anyone can benefit from the experience of a child custody lawyer if they are involved in a child custody matter. Even when both parents agree on child custody and visitation arrangements, you can still benefit from having a lawyer look over the agreement to ensure that you’ve covered all the issues that could arise in the day-to-day care as well as the long-term commitment of raising a child.

In certain cases, having a lawyer is crucial, such as the scenarios listed below:

When Your Ex Has a Lawyer

Regardless of whether you and your ex seem to be making headway on a parenting plan together, if your ex hires a lawyer, you should consider hiring one too. The lawyer your ex hires will be employed to provide experience and expertise to protect their interests in the arrangement, but they will not be concerned with yours. A child custody lawyer hired by you will be tasked with protecting your interests.

When Your Circumstances Have Changed

Even individuals who were divorced a long time ago need to hire a child custody attorney if it’s time to modify a custody agreement to better meet the changing circumstances of either parent.

Some circumstances that might warrant a modification of a custody agreement include:

  • Communication between the parents has broken down or become combative, and the ability to jointly make decisions for the child has become hampered as a result
  • One parent is not abiding by the parenting agreement or is using the non-payment of child or spousal support as a reason to deny the other parent access to the child
  • One parent has remarried or has moved in with a new partner and there is now concern about the care the child is receiving when in the custody of that parent
  • One of the parents is planning to relocate to an area that is too far away to easily facilitate a joint physical custody arrangement
  • One parent has begun engaging in an activity that jeopardizes the safety and welfare of the child while in the custody of that parent
  • There is evidence of child abuse or neglect
  • The custodial parent has died

Even if your circumstances aren’t listed above, you may still be able to adjust your current custody agreement to better suit your needs. Consult with a local child custody lawyer to start the process.

When Your Ex is Making Decisions without Your Knowledge or Consent

If the parents of a child share legal custody, then one parent is required to obtain the other parent’s consent before making major decisions in the child’s life.

One parent might choose to remove a child from school or daycare without consulting the other parent. That action could be perceived as non-cooperation with the agreement as well as a potential flight risk, and a child custody attorney can advise you on how to best handle the situation.

When Your Ex Prevents You From Seeing Your Kids

The family court system protects your right to have a relationship with your child in accordance with the provisions of your parenting plan. If your ex has prevented you from having contact with your children during the designated non-custodial time, during scheduled parenting time, or has canceled your scheduled parenting time at the last minute, you should document the times, dates, and circumstances.

If it happens repeatedly, you should discuss your legal options with an experienced child custody lawyer.

When You Have Been Court-Ordered to Seek Treatment

Child custody matters are one area in life where your past can certainly come back to haunt you. If you have a criminal record or have been court-ordered to seek treatment for substance abuse, anger management, or addiction to pornography; or if you have been ordered to attend alcohol education classes, traffic safety classes, or therapy for anger-control issues, these issues can impact how the court views your ability to provide a safe environment for your child.

Any allegations that have been made against a parent regarding domestic violence, including abuse toward the other parent, the child, or any other partner or children will certainly be weighed in considering child custody issues.

When You Believe Your Children Are In Danger

One of the very foundations of parenting is keeping your child safe from harm. If you have reason to believe that your child’s physical and emotional safety are in danger as a result of the other parent’s environment or actions, you should contact an experienced child custody lawyer immediately to determine the type of action that needs to be taken.

When You and Your Ex Don’t Live in the Same Area

The Uniform Child Custody and Enforcement Act states that the child custody laws in the child’s home state will apply to all custody matters. A child’s home state is defined as the state where he or she was born or resides for six consecutive months immediately preceding the custody action.

There are thousands of parents across the U.S. who share in the custodial responsibilities of raising a child with an individual who lives in a different state or even in a different country. While these arrangements can and do work in many cases, there are definitely issues to be ironed out in the agreement, including differing jurisdictions in the states or countries where each parent resides. Having the guidance of an experienced child custody lawyer ensures that your arrangement satisfies these laws.

When The Custodial Parent Has Died

In cases where the parent who had sole physical custody of the child dies, custody of the child is not automatically transferred to the other parent. This is particularly true if the non-custodial parent is unable to provide a safe and healthy environment for the child.

Often, another adult in the child’s life will be given custody, such as a grandparent, godparent, aunt, or uncle. This is known as third-person custody and can be granted if the third party can prove they can provide an environment that honors the best interests of the child.

How is child custody determined?

If divorcing or separating parents can create a custody arrangement to which they both agree, the agreement can be submitted to the court. A family law judge will review the arrangement to ensure that it adequately serves the best interests of the child. If it is found to be sufficient, then the agreement will be accepted as the court order. If an agreement cannot be made, then the court will decide all custody matters.

Protecting the best interests of the child are the main goals of any custody agreement in the court’s view. The court considers the following factors to determine the best interests of the child are:

  • The age, gender, mental, and physical health of the child
  • The mental and physical health of each parent
  • Each parent’s lifestyle, as well as his or her willingness to accept the relationship between the child and the other parent
  • Other social factors such as whether a particular custody arrangement would require the child to change schools or move to a location where it will be more difficult to see the other parent
  • The emotional bond that the child has with each parent, as well as each parent’s ability to offer the child sound guidance
  • Each parent’s ability to meet the child’s basic needs, such as food, clothing, shelter, and access to medical care
  • The child’s established living pattern, such as where he or she currently goes to school or attends church
  • The quality of education the child is receiving in their current living situation
  • The impact of disrupting the child’s established living pattern
  • The child’s preference regarding where they want to live and if they are mature enough to understand the factors involved in making such a decision

Federal laws prevent the courts from basing custody decisions on:

  • The sexual orientation of the parent,
  • The race of the parent or with a parent’s new partner, or
  • The preferences of a child who is not mature enough to make the decision.

While all states allow the judge to consider the preference of a mature child when making custody decisions, child custody laws in Georgia allow children to actually decide who gets physical custody of them. Only children who are at least 14 years old can decide, and the judge must approve of the choice.

Examples of Common Child Custody Arrangements

There is no standard custody arrangement that works for every family. Instead, there are several possible scenarios with countless opportunities to create an arrangement that best serves the child’s interests.

Some common arrangements for child custody include:

  • Joint agreement: The parents agree to joint physical and legal custody, and determine the details of dividing parenting time and making decisions in a way that works best for them and the child
  • Joint physical/ sole legal custody: Both parents enjoy time in which the child resides in their home, but only one parent is tasked with making legal decisions on behalf of the child and does not need to consult the other parent when making these decisions
  • Sole physical/ joint legal custody: This means that the child only lives with one parent, but both parents are tasked with making legal decisions on the child’s behalf. This type of arrangement is common when the parents live a long distance from one another
  • Sole custody/ supervised visitation: This type of arrangement occurs when one parent is granted physical and legal custody and the other parent can only visit with his or her child under the supervision of another adult

If you’re not sure with child custody arrangement will work best for you, consult with an attorney about your options.

How to Find an Experienced Child Custody Law Attorney

Child custody lawyers are often found working in practices that serve family law clients. In addition to assisting clients in custody matters, family law attorneys also help clients with divorce law, such as the division of marital assets or the provision of child support or spousal maintenance. This type of attorney commonly works on cases involving guardianship of disabled adults, adoptions, or emancipation as well.

It’s easy to find an experience child custody law attorney with our free legal resources. Get started now with our free legal tool below. Enter your ZIP code to find an affordable child custody lawyer or family law attorney in your neighborhood.

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